Opinion
March 31, 1924.
William P. Maloney, for the executors.
Charles A. Curtin, for the State Tax Commission.
This appeal is taken by the state tax commission from the order fixing the transfer tax on the ground that the shares of stock owned by decedent in the corporation known as William L. Marshall Company Limited, were undervalued. The stock has been valued at $60 per share by the appraiser, which is the value given to it by an expert accountant employed by the executors. After a substantial depreciation from the value of the assets of the corporation as shown by the books, the statement submitted by said expert indicates a value of $81.06 per share for the stock as of the 31st day of December, 1921. By eliminating from the profits of the business the earnings for the year 1919 — characterized as abnormal — and disregarding the profits made through financial transactions, the expert finds that the element of good will is not present. His valuation of $60 per share is not deduced from the books of the concern, but solely from a comparison with the prices quoted in the open market for listed securities having the same financial return. This method of appraisal is erroneous. Matter of Laidlaw, 176 N.Y.S. 885; Matter of Locke, 123 Misc. 291. The appraiser should have appraised the stock at its value as shown by the books as of the date of death of decedent, July 24, 1921, making due allowance for all proven depreciation in the assets and adding to such book value the amount of the good will. Matter of Seaich, 170 A.D. 686; affd., 219 N.Y. 634; Von Au v. Magenheimer, 126 A.D. 257; affd., 196 N.Y. 510; Matter of Ball, 161 A.D. 79; Matter of Flurscheim, 107 Misc. 470. All profits should be included in the calculation of the good will which were incident to the conduct of the business of the corporation. Matter of Flurscheim, supra.
The report is remitted to the transfer tax appraiser for reconsideration.
Decreed accordingly.